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New Authority for Counties to Regulate Nuisances Introduction

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In this legislative session, the General Assembly expanded the number of counties authorized to regulate nuisances and exercise general police powers. Last year, Chapter 627 of the Public Acts of 2002 amended T.C.A. § 5-1-118 to add a subsection (c) that allowed counties without zoning authority to exercise the authority granted to municipalities by T.C.A. § 6-2-201(22) and (23). Those powers are described by law as the ability to: Define, prohibit, abate, suppress, prevent and regulate all acts, practices, conduct, businesses, occupations, callings, trades, uses of property and all other things whatsoever detrimental, or liable to be detrimental, to the health, morals, comfort, safety, convenience or welfare of the inhabitants of the municipality, and exercise general police powers; and Prescribe limits within which business occupations and practices liable to be nuisances or detrimental to the health, morals, security or general welfare of the people may lawfully be established, conducted or maintained.T.C.A § 6-2-201(22) and (23).This year, the General Assembly, in Chapter 57 of the Public Acts of 2003, amended the statute to allow all counties the ability to use these powers after adoption of a local resolution by two-thirds vote of the county legislative body. The act took effect on April 23, 2003.

Background

A long line of Tennessee Supreme Court case law has held that counties have no authority except that expressly given them by statute or necessarily implied from it. Bayless v. Knox County, 286 S.W.2d 579 (Tenn. 1955). As a result, counties traditionally have not been able to exercise the general police powers and other regulatory powers that many municipalities have. In 1995, the General Assembly passed the so-called “County Powers Act” (Chapter 264 of the Public Acts of 1995) which enacted statutes giving counties specific regulatory authority over certain practices (e.g. regulation of stray animals - T.C.A. § 5-1-120), gave counties many other municipal powers by reference (e.g. making special assessments, granting franchises for public utilities and services, collecting garbage- T.C.A. § 6-2-201), and set up a system of enforcement of county rules through the general sessions court (T.C.A. § 5-1-123). At that time, the state legislature considered giving counties general police powers and regulatory authority over nuisances; however, that proposal was rejected. In the years that followed, some counties petitioned the legislature to amend the law to allow certain specific counties, identified by narrow population class, to exercise the nuisance regulatory authority. Such narrow population class exceptions to the general law have often been found suspect under the Article XI, Section 8 of the Tennessee Constitution. See Attorney General Opinion 02-044 (April 9, 2002). As a result, the counties using these narrow population classes always had the potential of a constitutional challenge to any regulations enacted under that authority. In 2002, Representative Charles Curtiss and Senator Jerry Cooper, at the request of a county in their districts, sponsored legislation to allow counties without zoning to use the regulatory powers described above. In mostcases, the counties that approached the members of the state legislature about this issue were having problems with particular types of problematic land uses that were unregulated in those counties. It was believed at the time that counties with zoning authority already had other means of addressing these concerns and were therefore omitted from the grant of authority. Subsequent to the 2002 session of the legislature, several counties with zoning authority made the argument that the nuisance regulatory power could be used to address issues not covered by zoning and would be helpful to counties regardless of whether or not they had zoning. As a result, legislation was proposed and passed in 2003 to give this authority to all counties.

Limitations

The exercise of the powers granted by T.C.A. § 5-1-118(c) is limited as follows:Local Adoption - Even though all counties are now eligible to exercise the powers in T.C.A. § 6-2-201(22) and (23), a county may not pass any such regulations pursuant to that authority unless it first adopts those powers by a resolution passed by a two-thirds majority of the county legislative body. A sample resolution that may be used for such adoption is included in this Spotlight. Also, Chapter 57 of the Public Acts of 2003 clarified that the county must not only pass such a resolution by a two-thirds majority, but also must pass any subsequent regulations by a two-thirds majority.

Jurisdiction - By law, the authority granted by T.C.A. § 5-1-118(c) may only be exercised in the unincorporated areas of the county. Additionally, the law states that it should not be construed to allow any county to prohibit or in any way impede any municipality in exercising any lawful municipal power or authority.Exempted Activities - The law also exempts certain businesses and practices from regulation. The powers conferred upon counties by T.C.A. § 5-1-118(c) do not apply to the following activities which are regulated under other provisions of general law: sale of beer and alcoholic beverages; wholesale of beer; surface mining; production of oil and gas; activities covered by environmental protection laws and regulations dealing with air pollution, atomic energy, solid waste disposal and management, landfills, hazardous waste management, petroleum underground storage, oil spill cleanup, dry-cleaning, water, wastewater and sewerage; water management; wells; and dams. Additionally, T.C.A. § 5-1-118(b) provides that counties may not use these powers to prohibit or regulate normal agricultural activities.

Grandfathered Uses - In T.C.A. § 5-1-118(c)(3), the law provides further that all court decisions and statutory laws relating to variances and non-conforming uses applicable to zoning ordinances and land use controls shall apply to the enforcement and exercise of these new regulatory powers. For example, if a county determined that the sound of planes taking off and landing at an airport could potentially be a nuisance to surrounding residential properties and passed a regulation prohibiting the location of an airport within ½ mile of a residential property, this regulation may limit the location of future airports in the county, but an airport that was in existence at the time the regulation was passed which violated the distance rule would be allowed to continue to operate as a pre-existing non-conforming use.(continued after the sample resolution)(SAMPLE)

RESOLUTION NO. ____RESOLUTION TO AUTHORIZE THE EXERCISE BY THE COUNTY OF CERTAIN POWERSGRANTED TO MUNICIPALITIES UNDER T.C.A. § 6-2-201(22) AND (23) WITH RESPECT TOTHE REGULATION OF NUISANCES AND OTHER PRACTICES DETRIMENTAL TO THEINHABITANTS OF THE COUNTYWHEREAS, the General Assembly, in passing Chapter 627 of the Public Acts of 2002 and Chapter 57of the Public Acts of 2003, amended T.C.A. § 5-1-118 to expand the ability of counties to exercise certain municipal powers in relation to the regulation of nuisances and other practices detrimental to the inhabitants of the county as outlined in T.C.A. § 6-2-201(22) and (23); and,WHEREAS, the Board of County Commissioners of __________ County has determined that it wouldbe beneficial to the inhabitants of the county for __________ County to adopt these regulatory authorities and general police powers; and, WHEREAS, T.C.A. § 5-1-118(c) requires that any county desiring to exercise these powers must adopt a resolution by two-thirds vote of its legislative body in order to do so and must subsequently adopt any such regulations also by a two-thirds majority;NOW, THEREFORE BE IT RESOLVED, by the Board of County Commissioners of ________County, Tennessee, meeting in session on this ____ day of , 200_ at __________ Tennessee, that;SECTION 1. Pursuant to the directives of T.C.A. § 5-1-118(c), the Board of County Commissioners of_______________ County, Tennessee hereby expresses its intent that the county be authorized to exercise those powers granted to municipalities under T.C.A. § 6-2-201(22) and (23). Such powers are described by law as the ability to:

Define, prohibit, abate, suppress, prevent and regulate all acts, practices, conduct, businesses,occupations, callings, trades, uses of property and all other things whatsoever detrimental, or liableto be detrimental, to the health, morals, comfort, safety, convenience or welfare of the inhabitantsof the municipality, and exercise general police powers; and Prescribe limits within which business occupations and practices liable to be nuisances or detrimentalto the health, morals, security or general welfare of the people may lawfully be established, conducted or maintained.SECTION 2. The exercise of such powers by _______________ County shall be in accordance with all limitations provided in T.C.A. § 5-1-118. Such authority shall only be exercised in the unincorporated areas of the county. Such authority shall not apply to those activities, businesses or uses of property and business occupations and practices which are exempted from regulation by T.C.A. § 5-1-118(c)(2).SECTION 3. Furthermore, the Board of County Commissioners of ________________ County recognizes that all court decisions and statutory laws relating to variances and non-conforming uses which are applicable to zoning ordinances and land use controls shall also apply to the enforcement and exercise of the powers granted by T.C.A. § 5-1-118(c). Further, the Board of County Commissioners recognizes that the enforcement and exercise of these powers by the county is limited by the provisions of the Constitution of the State of Tennessee and the United States Constitution.SECTION 4. Subsequent to the effective date of this resolution, the county is hereafter authorized toadopt regulations in accordance with the authority granted under T.C.A. § 5-1-118(c). In order to be effective, such regulations shall also be passed by a two-thirds majority of the Board of County Commissioners of ____________ County.SECTION 5. This Resolution shall be effective upon its passage and approval, the public welfare requiring it.Adopted this day of , 200_ by a two-thirds majority.APPROVED: County MayorATTEST: County Clerk

(SAMPLE RESOLUTION CONTINUED)Constitutional Limitations - As with all government action, regulations passed under this new authority must be both written and enforced in such a manner that they do not violate the constitutional rights of persons affected by the regulations. For example, the county could not pass a regulation which prohibited passing out literature of a political nature. This would obviously violate a citizen’s First Amendment right to freedom of speech. The county could not pass regulations prohibiting religious ceremonies or the ownership of guns. The regulations could not discriminate on the basis of race, gender or other protected classes. These limits are obvious. Issues that are more likely to arise would involve challenges that a regulation resulted in taking property without just compensation or failed to provide due process. If the regulation is so burdensome on a property owner that the owner can no longer get use, enjoyment or value out of the property, a court may findthat the regulation effectively “took” the value of the property from the owner without providing them compensation. In that case, the regulation may be struck down or the county may be required to compensate the injured property owner. Due process problems may arise if citizens are not provided a means to dispute or appeal a penalty under the regulation. Part of providing due process in a regulation also involves giving the public adequate notice of the regulations. This standard of adequate notice requires a regulation to be clear in its language and application so that affected persons understand the regulation. If a county regulation is so vague that the public cannot ascertain what conduct is regulated or how it is regulated, it may be struck down as unconstitutional. Enforcement

The laws passed in 2002 and 2003 did not include any specific provisions regarding how these new regulatory powers would be enforced. Therefore, enforcement will fall under existing statutory authority. As part of the “County Powers Act” the legislature passed T.C.A. §§ 5-1-121 and 5-1-123. These statutes authorize enforcement of county regulations by monetary penalties and direct that the general sessions court is the proper venue for enforcement of the regulations. In T.C.A. § 5-1-121, the legislature provided that the penalties for violation could be up to $500 per violation; however, subsequent court decisions probably place limits on this monetary penalty. See Chattanooga v. Davis, 54 S.W.3d 248 (Tenn. 2001). According to the Tennessee Supreme Court in that case, a punitive fine levied by a local government cannot exceed $50 unless the defendant is allowed to have a jury trial. Higher fines could be enforced if they are remedial in nature rather than punitive but this distinction is difficult to make. Therefore, a county should generally limit monetary penalties to $50 or less per violation. Penalty provisions of any regulations should be carefully considered by the county attorney. The county attorney should also be involved in the development of any regulations as he or she will most likely be involved in enforcement of the regulations and the defense of any legal challenges to the regulations. Attorney General’s Opinion 03-024 states that ordinances or regulations passed under T.C.A. 5-1-118(c) are to be enforced by a civil lawsuit brought on behalf of the county. The Attorney General further opined that since the statutory scheme does not designate aspecific officer to prosecute ordinance violations, it appears that suits to enforce a regulation would be brought by the county attorney. The means of enforcing regulations should be resolved prior to the passage of new regulations.(Continued on back)

County TechnicalAssistance ServiceA SERVICE OFTHE UNIVERSITYOF TENNESSEE226 Capitol Boulevard Building, Suite 400Nashville, Tennessee 37219-1804The University of Tennessee does not discriminate on the basis of race, sex, color, religion, national origin, age, disability, or veteran status in provision of educational programs and services or employment opportunities and benefits. This policy extends to both employment by and admission to The University. The University does not discriminate on the basis of race, sex, or disability in its education programs and activities pursuant to the requirements of Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act (ADA) of 1990.

Inquiries and charges of violation concerning Title VI, Title IX, Section 504, ADA, or the Age Discrimination in Employment Act (ADEA) or any of the other abovereferenced policies should be directed to the Office of Diversity Resources (DRES), 2110 Terrace Avenue, Knoxville, Tennessee 37996-3560, telephone (865) 974-2498 (V/TTY available) or (865) 974-2440. Requests for accommodation of a disability should be directed to the ADA Coordinator at the Office of Human Resources,600 Henley Street, Knoxville, Tennessee 37996-4125.E15-1570-00-002-04

While the new laws significantly expand the authority of county governments, counties should not rush to enact a large volume of regulations under these new powers. Any regulations passed should be carefully considered and crafted with the assistance of legal counsel to avoid constitutional or statutory problems. Since most counties have not traditionally performed regulatory functions, consideration must also be given to how these regulations will be enforced, who will enforce them and how enforcement operations will be funded. These regulations are civil in nature, not criminal. While it may work in some counties, the sheriff’s office will not always be the appropriate department to enforce nuisance regulations. A codes officer or building inspector may be more suitable for thiswork. Many counties do not currently employ anyone with expertise in these areas. Hiring new employees that have the knowledge and experience to enforce regulations or training existing personnel will be essential to the successful implementation of nuisance regulations.